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Kickflip, Inc. v. Facebook, Inc.

United States District Court, D. Delaware

September 27, 2013

KICKFLIP, INC., Plaintiff,
FACEBOOK, INC., Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Kenneth L. Dorsney, Mary B. Matterer, MORRIS JAMES LLP, Wilmington, DE; Derek A. Newman, Derek Linke, NEWMAN DU WORS LLP, Seattle, WA; Brian R. Strange, Keith L. Butler, STRANGE & CARPENTER, Los Angeles, CA, Attorneys for Kickflip, Inc.

Steven J. Balick, Tiffany G. Lydon, Andrew C. Mayo, ASHBY & GEDDES, Wilmington, DE; Thomas O. Barnett, Jonathan Gimblett, Caitlin R. Cottingham, COVINGTON & BURLING LLP, Washington D.C., Attorneys for Facebook, Inc.


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STARK, U.S. District Judge.

Presently before the Court is Defendant Facebook, Inc.'s (" Defendant" or " Facebook" ) Motion to Dismiss Pursuant to Rule 12(b)(6) (D.I. 11) and Plaintiff Kickflip, Inc.'s (" Plaintiff" or " Kickflip" ) Motion to

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Strike Re: Facebook, Inc.'s Motion to Dismiss (D.I. 14).


Kickflip filed this action against Facebook on October 26, 2012, alleging antitrust violations and tortious interference, in relation to Facebook's virtual-currency service, Facebook Credits, and Facebook's social-gaming network. (D.I. 1) On January 4, 2013, Facebook moved to dismiss the case for failure to state a claim. (D.I. 11) Facebook also alleges that Kickflip lacks standing. (D.I. 12 at 8) The parties completed briefing on the motion to dismiss on February 11, 2013. (D.I. 12, 15, 16) During the briefing, on February 1, 2013, Kickflip moved to strike materials outside the pleadings from being considered in connection with Facebook's motion to dismiss. (D.I. 14) The parties completed briefing on Kickflip's motion on February 25, 2013. (D.I. 14, 18, 19) The Court heard oral argument on July 29, 2013. (D.I. 21) (" Tr." )

For the reasons discussed below, the Court will grant in part and deny in part Kickflip's motion to strike and will deny Facebook's motion to dismiss.


A. Motion to Strike

Pursuant to Federal Rule of Civil Procedure 12(d), " [i]f, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." This process is known as " conversion." See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999). However, a Court may consider, without converting, " matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, and items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006); see also Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993). The Third Circuit has explained that " [p]laintiffs cannot prevent a court from looking at the texts of the documents on which its claim is based by failing to attach or explicitly cite them." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

B. Motion to Dismiss

The sufficiency of pleadings for non-fraud cases is governed by Rule 8 of the Federal Rules of Civil Procedure, which requires " a short and plain statement of the claim showing that the pleader is entitled to relief." When presented with a Rule 12(b)(6) motion to dismiss for failure to state a claim, courts conduct a two-part analysis. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, courts separate the factual and legal elements of a claim, accepting " all of the complaint's well-pleaded facts as true, but [disregarding] any legal conclusions." Id. at 210-11. This first step requires courts to draw all reasonable inferences in favor of the non-moving party. See Maio v. Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000). However, the Court is not obligated to accept as true " bald assertions," Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), " unsupported conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are " self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).

Second, courts determine " whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679,

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129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A claim is facially plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. This is a context-specific determination, requiring the court " to draw on its judicial experience and common sense." Id. at 679. At bottom, " [t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).

" [W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court." Bell A. Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). Finally, although a non-fraud claim need not be pled with particularity or specificity, that claim must " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Id. at 555.


A. Motion to Strike

Kickflip requests that the Court strike all materials relied upon by Facebook in support of its motion to dismiss that are outside the pleadings. (D.I. 14 at 1) These materials, and their ...

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